Beyond Citizens United

By George W. Liebmann

Dec 12, 2015 | 6:00 AM

Few are satisfied with the present state of American politics: a polarized U.S. House of Representatives and state legislatures, a presidential race in which vast sums from unidentified sources are being spent, candidates distinguished by inexperience and extreme views, and a politicized judiciary. Some blame this state of affairs on the Citizens United decision and on Republican gerrymandering of legislatures, but the situation is largely the work of reformers.

Until 1973, the campaign finance regime was well understood. Both parties' national candidates drew support from well-known donors: Republicans from Pews and Mellons, Democrats from Marshall Field and Hollywood moguls, and an occasional eccentric like Eugene McCarthy's benefactor in 1968, Stewart Mott. Politicians spent little time "dialing for dollars."

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In 1973, the Democrats, in a fit of post-Watergate righteousness, enacted "campaign finance reform," limiting individual contributions to $1,000. In the era before touch-tone phones, this burdened the index fingers of politicians, though the Supreme Court created an exception in favor of egomaniacs spending their own money. Less well endowed politicians swiftly learned to delegate dialing to industry interest groups, which helpfully "bundled" contributions. Though this helped give us the savings and loan scandal, there was little complaint from Democratic politicians, who also benefited from thinly disguised political contributions by tax-exempt foundations to groups like La Raza and the gay rights movement.

According to the Democratic narrative, this happy picture was disturbed by a bolt from the blue in the form of the Citizens United decision by a partisan Supreme Court majority, holding that corporations had a First Amendment right to make unlimited contributions, the contributors to which were undisclosed. While Citizens United shredded a lot of law relating to the power of governments to limit use of the corporate form, its equation of speech and money was the innovation not of Chief Justice Roberts, but of Harry Blackmun, who invented the "commercial speech" doctrine to protect commercial advertising by abortion clinics. While such advertising has debased both the medical and legal professions, the advocates of "reform" seek to overrule only Citizens United, not the broader doctrine, beloved of trial lawyers, that gave rise to it.

Likewise, reapportionment was a cause fostered by the "shiny-brights" over the vehement and prophetic dissenting opinions of Justices Frankfurter and Harlan. The Wizard of Ooze himself, Republican Senate leader Everett Dirksen, valiantly fought against it. It benefited wealthy and growing suburban areas at the expense of declining cities and rural areas, producing legislatures that were socially more liberal, economically more conservative, less experienced and more dependent on campaign donors. Senator Edward Kennedy's Voting Rights Act, with its fostering of majority-minority districts, further enhanced both polarization and gerrymandering.

The fashionable cures are the overruling, somehow, of Citizens United, and the creation of "nonpartisan" redistricting commissions, inevitably dominated by the "political scientists" who got us into this mess in the first place. Two less conventional but more effective cures would lift individual contribution limits and, as Constitutional Law Professor Michael McConnell has proposed, relax reapportionment standards to overlook disparity in size of districts where seats are allocated among subdivisions or groups of subdivisions according to a permanent formula requiring at least 42.5 or 45 percent of voters to elect a majority of the legislative house.

But there is a more feasible reform that would require neither constitutional change nor (in most states) legislative action: curtailment of party primary elections in favor of conventions dominated by local officeholders, the basis of almost all parliamentary democracies. Following the fiasco in 1972 resulting from the McGovern Rules, both parties added limited numbers of "superdelegates" to their national nominating conventions, no legislation being required.

When the direct primary was fostered during the Progressive era, President Taft noted that "A convention system will take the more moderate man whose name will appeal to the independent voter, [The primary benefits] men of wealth and of activity and of little modesty. . . without real qualifications for office. . . [It] has made impossible as a candidate for elective office everyone who is not the choice of the machine or is not independently wealthy."

Five years later, his son Robert Taft observed: "The quality of candidates and officials has steadily deteriorated since it was initiated. No man except one who has no business or one who is very rich can afford to enter a campaign. The direct primary has made impossible the existence of a State Party organization and the result is that no State Party in recent years has initiated or carried through any important policy of state government."

This reform would restore James Madison's system for the "filtering" of officials by those who actually know them. As Judge Learned Hand once reminded us: "Publicity is an evil substitute, and the arts of publicity are black arts."

George Liebmann (george.liebmann2@verizon.net) is the author of several books on local government and the professions, and volunteer Executive Director of the Calvert Institute for Policy Research in Baltimore.